On October 28, 2022, the Supreme Court of Canada issued its ruling in R. v. Ndhlovu. The Court found that two elements of the Criminal Code related to the National Sex Offender Registry were inconsistent with the Canadian Charter of Rights and Freedoms.
Specifically, the Court struck down the provisions that required automatic registration for everyone convicted of, or found not criminally responsible for, a designated sexual offence, as well as the provision requiring mandatory lifetime registration for some offenders. The Court found these provisions inconsistent with section 7 of the Charter, which guarantees everyone the right to life, liberty and security of the person.
The Court gave Parliament one year to respond to the decision on automatic registration. Without new legislation, the National Sex Offender Registry after October 28, 2023, will effectively cease to be operational, as it will not be possible for courts to order sexual offenders to register and comply with the Registry.
The proposed legislative changes respond to the Court’s decision by making the following changes to the criteria for automatic registration on the National Sex Offender Registry:
All other sexual offenders would be required to register unless they can demonstrate to the court that registering would not meet the purpose of the Registry, which is to help police prevent or investigate sexual crimes, or that registering would have a grossly disproportionate impact on them.
The courts would be able to order registration in additional circumstances:
The proposed legislation would also ensure aggravated sexual assault against a person under 16 is no longer excluded from the list of offences for which registration may be required.
Publication bans are a useful tool to shield the identity of victims and witnesses and protect them from further harm. For cases involving sexual offences, judges must on request, order a publication ban to prevent the publication of the name of victims or any information that could identify them.
Publication bans aim to protect victims and encourage them to come forward to report their cases. However, our Government recognizes that victims have diverse needs and that the criminal justice system must be flexible and ensure that victims are treated with dignity and respect. We have heard from some victims that publication bans do not go far enough to protect them, especially where information is online, before the publication ban is ordered. Other victims do not want a publication ban or do not want it in place indefinitely. Some victims feel silenced by the inability to speak about their case publicly. We have heard that the process for lifting a publication ban is both unclear and difficult to navigate.
The proposed changes would:
These changes would respond to the concerns of victims who have asked for their views to be taken into consideration when seeking publication bans, while at the same time ensuring that publication bans continue to be available to those who want them.
Under the Canadian Victims Bill of Rights, all victims in Canada have the right to information. The Government of Canada has heard concerns from victims and stakeholders about the difficulties victims can face when trying to access information through the criminal justice process.
Victims do not systematically receive information about the case unless they request it. Some victims will want certain types of information, others will not.
The proposed changes would:
Some victims wish to receive ongoing information about the offender who harmed them. This information could include the length of the offender’s sentence and its start date, when an offender might be eligible for parole, release conditions, and appeals of release decisions.
Empowering victims to make choices based on their particular needs and what will work for them is a trauma-informed practice. Victims would also be able to choose not to receive information if that is their preference.